In his email to Business Insider, Phillips said he seemed troubled by the fact that President Barack Obama has publicly defended his signature healthcare law while the decision on its fate is still pending.
“If I thought I were about to win an important case, I would say nothing for fear of tipping the scales. But if someone at the Court leaked the outcome to the White House, then I might very well do whatever I could to create as much political pressure as I could to convince a fifth vote to take the pragmatic approach rather than the ideological one,” Phillips wrote. “But that assumes the President is being calculating based on inside information here rather than merely speaking off the cuff.”
Carter added, “I don’t like conspiracy theories.”
Despite Obama’s comments, Phillips said the oral arguments suggested one of the court’s conservative justices — Chief Justice John Roberts or Justice Anthony Kennedy — might be swayed to save Obamacare.
“The four liberals were very aggressive at the oral argument and only three of the conservatives were,” Phillips said. “So if Obama could pick off either the Chief or Kennedy, he would win.”
Ted Olson, also a veteran advocate, offered similar remarks:
“When I was solicitor general, I would not have wanted President Bush to be saying things like that, one way or another, about the Supreme Court or the decisions it was making,” said Theodore B. Olson, who served as solicitor general under George W. Bush and is now a partner at Gibson, Dunn & Crutcher in Washington.